July 3, 2013 – In a case with implications for Wisconsin, the U.S. Supreme Court recently ruled in favor of a couple seeking to adopt a child whose Native American father objected, despite a federal law intended to preserve Indian families.

Last week, in Adoptive Parents v. Baby Girl, a 5-4 majority reversed a state court ruling that applied the Indian Child Welfare Act (ICWA) to block the adoption by preserving the parental rights of the biological father, a member of the Cherokee Nation in Oklahoma.

The Supreme Court majority ruled that ICWA did not apply to preserve the father’s parental rights because he initially abandoned the child and never had custody, noting that the non-Indian mother had sole custody and consented to the adoption.

“In this case, the Court’s balanced the rights given to tribes under ICWA with the rights of the non-Indian mother and the child,” said Madison attorney Theresa Roetter, who helps families through the adoption process.

“While not cited in the decision, this holding is consistent with the Court’s prior rulings in Lehr v. Robertson and Stanley v. Illinois, which require more than biology alone for an unwed fatherto achieve protected parental rights,” Roetter said.

But the State Bar’s Indian Law Section board, which supported the biological father’s position, said in a statement that it was “deeply saddened” by the decision. Wisconsin’s 11 federally recognized Indian tribes also supported the father and filed an amicus brief.

ICWA and the Court’s Decision

Congress passed ICWA in 1978 to promote “the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children” through adoptions and foster care placements.

Congress recognized that state removal of Indian children in the 1960s and 70s was causing the unwarranted breakup of Indian families and tribes despite tribal child-rearing values and customs that differed from the norms of non-tribal American society.

Joe Forward is the legal writer for the State Bar of Wisconsin. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

Under ICWA, a court cannot terminate a parent’s rights unless it determines, beyond a reasonable doubt, that “continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”

The court or jury must also find that active efforts were made to prevent a breakup of an Indian family through services and programs while accounting for cultural differences in the way tribal children are raised.

In non-ICWA cases, a court must determine if grounds exist for termination of parental rights, but serious emotional or physical damage to the child is not a prerequisite to finding that grounds exist. In cases involving Indian children, it is a prerequisite.

However, the U.S. Supreme Court majority ruled that ICWA’s heightened standards don’t apply “where the Indian parent never had custody of the Indian child” because ICWA only contemplates whether “continued custody” would result in harm to the child.

Additionally, there is no “breakup of an Indian family” for courts to consider when no Indian parent ever established a custody “relationship,” the majority ruled.

“In sum, when, as here, the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA’s primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated,” wrote Justice Samuel Alito for the majority.

In dissent, Justice Sonia Sotomayor wrote: “Notwithstanding the majority’s focus on the perceived parental shortcomings of Birth Father, its reasoning necessarily extends to all Indian parents who have never had custody of their children, no matter how fully those parents have embraced the financial and emotional responsibilities of parenting.”

“Hotly Contested” Facts of the Case

Dusten Brown, a member of the Cherokee Nation tribe in Oklahoma, fathered a child with a non-Indian mother. Although once engaged, the couple never married and the relationship ended before the baby (Veronica) was born.

During pregnancy, the mother arranged for Veronica’s adoption but did not tell the father, who did not have contact with the child or provide financial support during pregnancy or after the child’s birth.

In addition, according to court documents, the father agreed to relinquish his parental rights via text message to the mother, although the father later argued that he believed he was relinquishing his rights to the mother and not for purposes of adoption.

Melanie and Matt Copobianco, a couple from South Carolina, obtained permission to remove Veronica to South Carolina, and instituted adoption proceedings there.

However, the father argued that permission was obtained by providing misinformation to the Oklahoma Interstate Compact on Placement of Children. Specifically, the forms did not indicate the child was part Native American, which would have triggered ICWA.

When Brown learned of the potential adoption four months after Veronica’s birth, he filed suit to block the adoption and pursued action to establish paternity and custody.

Ultimately, the South Carolina Supreme Court ruled in favor of Brown under ICWA and ordered the Copobiancos to give Veronica to her biological father.

Veronica had been living with the adoptive couple for two years. The high court’s ruling means the child, now three years old, will likely be returned to the adoptive couple, unless the father establishes some other grounds to block the adoption on remand.

Impact in Wisconsin

Wisconsin incorporated ICWA into state law in 2009. Wisconsin ICWA, known as WICWA, differs from federal law in some respects but was passed unanimously to ensure that Wisconsin courts applied ICWA’s federal minimum standards in Wisconsin.

Under Wis. Stat. section 48.028(4)(e), a court cannot terminate a parent’s rights unless it determines, beyond a reasonable doubt, that “continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” and active efforts were made to prevent the breakup of the Indian family.

According to the latest decision, ICWA does not apply to termination of parental rights cases in which the objecting parent “never had custody” of the Indian child.

“The Supreme Court’s decision will be useful to practitioners due to the careful analysis of the language of the Indian Child Welfare Act,” Roetter said.

“In determining the standard to be applied in an involuntary termination of parental rights proceeding, both the words ‘continued’ as it applies to custody and ‘breakup would only be germane when applied to an intact Indian family and are not factors to be considered where a parent did not have custody of the child.”

More than 800 involuntary termination of parental rights cases were filed in Wisconsin last year. WICWA only applied to those cases involving Indian children, and a smaller percentage likely involved an Indian parent who never established custody.

"Each year, I can count on one or two hands the number of TPR cases that involve WICWA," said Mary Sowinski, an assistant district attorney in Milwaukee who supervises the termination of parental rights unit. "In the TPR context, it's rare."

However, Sowinski says that currently, there is no mechanism to accurately identify the children to which WICWA should apply, and a fair number of TPR cases involve fathers who have not established custody.

Ho Chunk legislative attorney Carolyn Grzelak has noted that Wisconsin tribal members who live in other states would also be impacted by the high court’s ruling. Grzelak is on the Indian Law Section board, which released a statement on the decision:

“The Indian Child Welfare Act was passed to prevent the breakup of Indian families. Despite the Court's narrow ruling, the Indian Child Welfare Act is still the law in the United States. In Wisconsin, the Wisconsin Indian Child Welfare Act continues to protect Indian children and recognize the rights of tribes by requiring placement preferences and prohibiting the existing Indian family doctrine.”

The judicially-created “existing Indian family doctrine” says that ICWA does not apply to custody cases if an Indian child’s existing family does not have tribal connections.

Wisconsin squarely rejects the existing Indian family doctrine under Wis. Stat. section 48.028(3)(a), which says ICWA applies regardless of whether the Indian child is part of an existing Indian family at the time of the custody proceedings.